Blockchain is for Blockheads

Remember what I wrote recently? Seems a respected investment hedge fund agrees:

The use of blockchain in operating an image copyright platform accomplishes nothing. KODAKOne intends to utilize smart contracts and a crypto-asset to solve the problem of copyright infringement, but the business idea is flat-out silly. Cryptographically hashing an image into a blockchain doesn’t prove the provenance of intellectual property, a blockchain does not reduce the resources necessary for copyright enforcement […]

It’s definitely worth reading the whole original post on this, from the UK’s Mr. David Gerard, as he shares more on what a total scam blockchain is for photographers overall.

Look, if you want to protect your copyrights, REGISTER your work with the USCO and hire an attorney to go after infringers (it costs much less than you may think).

New Rules! (for photo © registrations) UPDATED

Back in December of 2016, the US Copyright Office (USCO) proposed new rules for group photo registrations, including significant changes to registering a pile of unpublished photos. I wrote about the proposed rules then. Now, the final rules are out and they mostly match up with the proposed ones, but not completely.

The new rules make two categories of group photo registrations (leaving out databases, which are a different kettle of fish and most individual artists will not have to address those, so I’m skipping them here). The two categories are GRPPH for Group (of) Published Photographs and GRUPH for Group (of) Unpublished Photographs. Now, most of the rules are the same for both, making life a little easier as you will have to learn, essentially, one system.

First, though, you’ll notice that you still have to keep published and unpublished separated. The USCO looked at the issue and they simply can’t change that as it is not a “rule” but rather part of the law itself. The USCO has the authority to create and modify rules, but it can’t change the underlying law or create rules that conflict with those laws. It does sound like they think the split should be dropped, though, so maybe that will come sometime in the not terribly distant future?

Oh, and about the unpublished photographs… you will no longer be able to do the unlimited number of photos as a collection option. It is GRUPH only from here out.

Anyway, the new rules… first, the commonalities. These are the rules for both groups:

  • must have a title for the whole group
  • must have titles for each photograph in the group (can be just the file names, but with character restrictions)
  • limit of 750 photographs per registration
  • all photos must have the same author[1]
  • must register online–no paper registrations will be accepted
  • must pay the $55 fee
  • must submit digital deposit copies (jpeg, gif, tiff only), preferably in an uploaded .zip file containing all the photographs (that must be <500 megabytes total[2]);[3]
  • must submit a separate document that lists the photos in a very specific manner (more on that below) that should be included in the .zip file.

For published photographs, the pilot program is ending with these new rules. If you’ve been a part of the pilot program, the USCO should be contacting you about the changes. As for the registration differences, published photos have these additional rules: they all must be first published within the same calendar year (i.e., 2015 or 2018, etc.), same as the current rule; but, and this is new, they do not have to have been first published in the same country. Also, you will need the date of first publication for each photograph.

Now, about that list document… this is going to be a bit of extra work, but it really will be helpful in the case of an infringement as all the information about the deposit copies will be easily accessible. For this document, which the USCO says should be either xls (an Excel file) or a pdf, there are nitpicky rules. I suggest making a template and sticking to it.

First, the document itself must be named in a very specific manner: the title of the group plus the case number assigned to the application by the electronic registration system. Yes, that means you can’t name the document until after you have created the application online and get a case number, but you can still prep the document (that will be uploaded with the deposit copies) and have it ready, just add the case number to the title. An example for a group registration of unpublished photos that Photo Betty is making from her trip to Hawaii might be Group Unpublished Hawaii Photographs Case Number 123456789.xls. Or, for published photographs from the same trip, Group Published Hawaii Photographs Case Number 987654321.xls.[4]

The contents of the document need to be, in order:

  • sequential numbering (i.e., 1, 2, 3…)
  • title of the photograph (this may be the same as the file name)
  • file name of the photograph (no characters other than letters, numbers, and spaces).

So, for example, the contents of the document for unpublished photos might look something like[5]:

  1. title: Maui at Dusk 1 file: Maui1.jpg
  2. title: Maui at Dusk 2 file: Maui2.jpg
  3. (etc.)

If the photos are published, then you add the date of first publication. So, the example above, if Betty published them on her stock photo site on January 15, 2018, would be:

  1. title: Maui at Dusk 1 file: Maui1.jpg pub. date: 1/15/2018
  2. title: Maui at Dusk 2 file: Maui2.jpg pub. date: 1/15/2018
  3. (etc.)

That’s it and, really, it’s not that terrible.

More importantly, the rules specifically state that photographs registered as a part of one of these groups will each be individually covered by the registration. That is a very big deal. That eliminates one of the biggest arguments defendants make–that is that any one photograph is only a tiny part of the whole registration and so the damages must be less or, even, that fair use applies. Nope, now it will be clear that each photograph in the group gets the full measure of damages and is fully protected as its own self (not a part of a greater whole). Huge benefit there, especially for unpublished photos where this has been a particular problem.

These new rules go into effect on February 20, 2018. For the detailed information, go here (pdf).

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UPDATE: The USCO has come out with help pages that include links to templates (Excel) for making the lists. Go here for unpublished and here for published.

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[1] “Author” does not necessarily mean “photographer” although it can. If you are an individual photographer then you are the author of your photos. Easy-peasy. However, for studios with multiple photographers and other employers of photographers, the employer is the author of all the work, even if created by multiple photographers.

[2] The photos may be compressed to fit the file size requirement.

[3] You can send flash drives or DVDs or similar instead, but it’s really easier (and much faster to get your certificate) to upload the files.

[4] While the rules do not specifically say you must say “group” in the title, it has been preferred that one do that and I suspect that preference will continue. It won’t hurt to use that format so I suggest sticking to it, at least for now.

[5] The new rules state that the information I note must be included, as I have it here, but it doesn’t say what the preferred format is. This is a best guess for how they want it from the description in the rule. I expect the USCO will clarify in the instructions on their website soon. For example, maybe the Excel sheet can have the words “title” and “file name” (and “pub date”) in the column headers rather than in the text.

Blockchain Copyright Services: Seductive, but Unwise

Kodak is joining the list of companies offering blockchain-related services for photographers. While I applaud the idea of photographers getting paid, I’m not a fan of these services. Mostly, the financials are not, in the long run, good for photographers.
Not by a long shot.

I know exactly what many people are going to say: without much effort, photographers will get paid for uses they didn’t get paid for before. Thing is, that may not be true at all; and, even when it is true, the amounts will be less than they could get if they pursued these infringements, and they are infringements. Most of all, photographers will be giving up way too much for the convenience these services are selling.

Let’s back up a bit and look at the process and the financials…

First, a photographer makes a photograph and registers the copyright in it using one of these services (any of ‘em–let’s call our hypothetical company “Block,” just for ease). Block submits the registration to the USCO and, hopefully, doesn’t make any significant error on the registration application (this is the first problem, in my book, because registrations are not just “fill in the blank” easy and if it gets screwed up… ouch). Anyway, Block also assigns the work its unique ID via blockchain. It also incorporates all sorts of things that sound fabulously whizbangy and techno-impressive, like connected thumbnails of the deposit copy and the registration.

The big selling point is that the services will patrol the interwebs looking for your image and, if the image is used, will pursue payment if previously unlicensed. These uses are billed for, through Block, who then collects on these “post-use licenses” in part because the blockchain ID will “authenticate the image.
In theory.

The reality is not so fabulous.

First, what the hell does “authenticate” even mean here and what good does it do? I mean, seriously, is an infringer going to bend over and pay just because you have blockchain proof it is your registered-copyright photo and, thus, that they infringed? Nope. No more than infringers do now when confronted with existing forms of evidence (evidence, by the way, that has been used by courts long before blockchain came into being[1]). Infringers, and these are infringements we’re talking about, will refuse to pay just as they do now.

Maybe there’s one exception: infringers might pay more often, but only if the amounts demanded are tiny. This is the business theory, at least, for these companies: they will collect something for more of the infringements and that those amounts will add up. While this is great for those companies, who will make lots in volume, this is short-term thinking at best for individual creative pros (who will not make it up in volume and who lose more…keep reading).

Let’s say that Block bills a whopping $50 per blog use infringement (again, they are calling it a “post-use license” to sell it to the infringers, because it sounds nicer than calling them infringers). If you are a pro, I think you should NEVER sell a license for $50. Ever. Even for a personal blog use. It lowers the value of your work. I don’t care if it’s used on some tiny not-for-profit or personal blog, if you are a pro, a license to display your art is worth more than $50. But still, let’s stick with that amount (which, I suspect, may even be high for these services) because, at that number, Block (etc.) will get a bunch of these “sales.”

The individual artist, however, will have to collect on 15 of these $50 “licenses” to earn the minimum statutory damages owed, under the law, for a single infringement ($750)[2]. Worse yet: I’ve heard that some of these “services” charge 45-55% of the fees collected (a ridiculously high percentage, by the way), so now you’re looking at double that 15, just to get the minimum the law says you must get for a single infringement of a photograph whose copyright was registered before the infringement. And remember, the first thing you did here was register the copyright with the US Copyright Office so, um, yeah.

In other words, you’ve done the (allegedly) hard part–registering the copyright–so why in the hell are you giving away all the financial benefits of doing that?!?

But it gets even worse on the financial side. Let’s say you, through Block, have granted a bunch of these $50 licenses for online use. In fact, let’s say Block even billed and collected $500 for a “post-use license” for use on a small business commercial blog (extremely unlikely, but still). Now, that same photograph gets used by MegaCorp on its website and, in the negotiations, MegaCorp says it will pay $2500 to settle–five times the largest amount you ever got for a license for that photograph. You know that the license is worth more like $10,000 so you refuse (assuming you can–the agreement with the service may have you waive the right of refusal) and the case goes to court. Not only is it very possible that the court will not award you more than $2500, because, in part, of your low price history, it is unlikely that you will collect attorneys’ fees since you refused what appears to be, in that context, a reasonable offer, pre-suit[3]. You have, in essence, set your value at almost nothing because Block licensed your work (post-use!) for almost nothing, over and over. Even if you have licenses that you have issued that are more valuable, you will have to fight it out in court because your own evidence shows you will accept less. Ugh.

Now, as if the financials could be balanced by the services provided, let’s look at the blockchain proof these services are touting: short answer is you don’t need it. Really, it is of no added benefit to you, although it might make Block’s work easier. Sure, if you are asking for essentially a micro-payment and can wave the evidence of registration, etc., at the infringer, you might get paid quickly. However, in fact, in some ways by doing this, Block (and thus you) is doing the work of the defendant and that removes a tactical tool for later (litigation) use.

For example, assuming you registered the copyright shortly after creation of the work, you don’t need to prove that the work is validly registered. Under the law, if you registered the copyright to the photograph before or within 5 years of its first publication, then the legal burden is on the defendant to prove that the work is NOT properly registered, not on you to prove that it is[4]. It’s expensive to get deposit copies and the defendant should bear those costs since it bears the burden of breaking the registration. So, actually, you aren’t making it easier for them to pay you, you are taking away some of the tools your attorney can use to pursue them.

Oh, and about “your attorney,” if you use one of these services you likely agree to use their attorneys for any litigation resulting from a use they found. Their attorneys are contract attorneys who are getting paid very, very little to handle your case. I know because I have been approached by and refused to work with some of these companies as the rates offered were unreasonable.

Finally, and not for nothing, at least Kodak is using its own cryptocurrency for payment. This fad is not a good thing, as Warren Buffet has noted, and I agree. There is way too much uncertainty in the values, including the very likely possibility of total loss. Get paid in real currency, if for no other reason then you know that it isn’t financing North Korea or human trafficking or other crimes[5].

Look, I totally understand that creative pros want the business side of their lives to be easier. Technology can help with that. It’s easier than ever to register your copyrights yourself and to track your works for infringements, again by yourself. If you don’t want to do the work of pursuing the cases, you can hire someone in-house to handle a lot of it, like a studio manager or even a (paid) intern. You’ll still end up way ahead of what you would get with these services. There are also lawyers like me who will help you, even for many of the small cases, and (usually) for a lower percentage than these services charge.

In my opinion, if you are a creative professional, you owe it to yourself to treat your business like a business, and that means making decisions not on the basis of “how easy is it?” but rather “what will benefit my business the most?” When it comes to infringements, that means not giving away the farm for seductively easy now.
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[1] Like, for example, you can (and should) make copies of the deposit copies yourself and keep them in your own files with the registration. The metadata in these files will authenticate them.

[2] For a timely registered work, statutory damages must be between $750 and $30,000 for non-willful infringement, and up to $150,000 for willful. 17 USC §504.

[3] Courts have wide discretion in the award of attorneys’ fees under 17 USC §505 and, these days, are less likely to award them if a plaintiff has refused an objectively reasonable settlement offer.

[4] 17 USC §410(c): In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.

[5] See, e.g., http://www.businessinsider.com/why-bitcoin-and-other-cryptocurrencies-will-inevitably-become-tools-of-the-rich-powerful-and-criminal-2013-12; http://www.springfieldnewssun.com/business/crime-and-cryptocurrency-how-local-criminals-use-bitcoin-illegally/ispfn3mqvwWcsPRI1AKC0L/; and, https://www.inc.com/will-yakowicz/startups-law-enforcement-agencies-catch-criminals-who-use-cryptocurrency.html

One Year

Yesterday, July 1, was the first anniversary of Burns the Attorney.
Ive been incredibly lucky. Its been a really good first year.

I have wonderful clients, both new and old, who honor me with their trust. I take very seriously their reliance on me to do my best for them because, in very important ways, it means I help them focus on being creative professionals. Think about it: which would an artist rather do, make new art or chase down people who have used existing art without permission or payment?

That is most of what I do, helping artists with copyright infringement matters. But I do other legal work as well, of course. In the past year, Ive helped clients with contracts and releases, discussed business formations and the effects of community property on clients copyrights, and, well, lots of other things too.

Not everyone gets the opportunity to do what she really loves. I do, and I am so grateful for it.

I want to thank all of my clients and, in advance, all of those who will call on me to help in the future. I intend to be here for some time, serving artists of all sorts.

If you ever need me, you know where to find me.

And thanks.

The Drone Law Is Dead…Not

Last Friday, a Federal Circuit Court overturned the registration requirement for drones. Many people are hailing thisas the death of drone laws, but that’s not even vaguely accurate. At most, it may mean that people won’t need to register their drones at all or at least not if only used for hobby use (read: not as a part of your business). It may, however, be appealed or Congress could take action. DroneLife has a good article on the possible implications. Short answer: this still isn’t settled so don’t get too excited, yet.

Very importantly, this ruling, even if it stands, doesn’t affect operational rules that are tied to safety, like no-fly zones. It’s only about the registration requirement. Also, it is just about a federal regulation. States have their own and those are not affected by this ruling. Jonathan Rupprecht (Ruprecht Law) is an expert in drone law and has this page where you can look up your state’s laws and regulations. Do it.

I encourage any operatorto know her/his/theirapplicablestate’s laws (and federal ones) and to operate drones responsibly. Actually, I encourage people to reconsider using drones for the most part.Photographers and videographers have some legitimate uses for drones, but too often people are using them in ways that aren’t worth the downsides. Usinga drone inany sort of wilderness area, for example, makes for noise pollution for the creatures and the humans who are there to commune with nature. Drones generally are annoying to others and, often, an operator will be violating someone’s privacy in their use. I personally have experienced this–a neighbor buzzed me while I was in my own back yard. When I told him not to do that he was not exactly apologetic about his actions. He probably still believeshis right to fly isgreater than my right not to be buzzed and (probably) photographed. Don’t be that guy.

But if you do choose to use a drone, besides being a decent human about it, make sure you know all the applicable laws and regs–both fed and for your state and the state where you’ll be operating it (if you travel).

Thank you

Every year I’m thankful for what I get to do. Usually, I express that at the holidays by buying toys for Toys for Tots, in the names of my clients. This year I was motivated to do something a bit different.

The photo above isof kits I have put together for the homeless here in San Diego. San Diego has a huge problem with homelessness, for many reasons including that it is damn expensive to live here, and many of them live in Balboa Park and nearby areas. I see these people often (my boyfriend lives near the park) and each time I’m reminded of how fortunate I am not to be one of them. I could have and, if the statistics were predictive, one could say I should have, but somehow I managed instead to not end up on the streets; in fact, I’ve done okay.

Obviously, I can’t fix things for these people. I can’t even come close. But I thought that maybe some fresh basic necessities would make a fewlives a little less difficult. So, I purchased a bunch of things like socks and soap and microfiber cloths and chapstick (and other stuff). For the women, I bought a ton of tampons, as the only thing worse than being homeless has got to be being homeless on your period. I got really big ziplock bags to hold each kit and, the otherevening, I put them together (which is a bit of a stunt with a little kitten in the house). In the next few days, with the help of my boyfriend, I’ll be handing these out.

I could have sent my clients individual gifts but, really, I think most of them have the things they need and can buy most of the things they want, andthe money will do these other people more good.

[UPDATE: We handed them out yesterday (Sunday the 18th) morning and the recipients were happily surprised and gracious. All save one (who said nothing but noddded) said things like “Thank you!” and “God bless you!” so I’m passing their thoughts on to you.]

What I want to say, though, is that I couldn’t do this if it weren’t for each one of you, my clients. Thank you for a successful first six months of this practice and for trusting me with your legal needs. I appreciate every one of you more than I can say.

May you have the happiest of holidays with whomever you love, and in 2017 may you be healthy, happy, at ease, and free from suffering.

 

New Rules (probably)

The US Copyright Office is proposing new rules for registering photographs and it is asking for comments on these rules. There are three main categories with proposed changes: supplemental registrations, group registration of contributions to periodicals, and group registration of photographs.

The last one is likely the most important one for most photographers, so I want to talk about it, mostly, in this post. You can go here to read the official information(pdf), but I suspect most of you would rather poke yourself in the eye with a sharp stick as it’s written in governmental legalese. Here’re the basics you might want to know before wading into the Federal Register.

First, all group registrations of published photos (designated GRPPH) will have to be submitted electronically (no more paper options) with digital images submitted as deposit copies. Second, the maximum number of photos permitted in a single registration will be 750. Third, photographers would have to submit a separate list of all the photos being submitted as a part of the group “with a title, file name (matching the file name of the corresponding deposit copy), and in the case of GRPPH, the month and year of publication 29 (e.g., January 2016, February 2016, etc.) for each photograph in the group.” Finally, the deposit copies must be submitted in electronic form but you can send them on a disk or flash drive or upload them (with a 500MB limit per file uploaded).

Importantly, the last significant changeis that they are proposing a new category of Group Unpublished Photographs (designated GRUPH); before one could do an “unpublished collection” but this new category would replace that and have all the same requirements as the Group Published Photographs, including the 750 photos limitation and the list (but without publication dates, of course).

The only major difference between the two groups is that for published photos, the photos have to have been published within the same calendar year but the unpublished ones are not limited by time. Besides that, the groups must be only photographs and the photographs must be created by the same photographer–no mixing like 25 photos by Photo Bob and 32 photos by Photo Betty. Both the Group Published Photographs and the Group Unpublished Photographs registrations will be $55 per registration.

As always, you still may not mix published and unpublished in a single registration. That isn’t going to change with these rules chages, although I suspect that these changes may be a step in that eventual direction (maybe).

The Copyright Office is proposing to eliminate the pilot program for the Group Published registrations and to change the application process, to streamline it more. The Unpublished and the Published processes will be very much the same. Photographers will be encouraged to list the titles (and publication dates for published works) on the application itself as that will put them on the Certificate and that gives you advantages legally (I’m not going into that here, though–just do it) but, at a minimum, you’ll have to submit the list with all that information with the deposit copies (still, take the time to list the titles, it will be worth it).

Most importantly, the proposed rule would clarify that the single registration of a group confers full protection for each individual photograph in the group. That would eliminate the arguments that defendants use to try and limit the damages (or argue fair use) we see in court sometimes, like that using one image out of a registration of 500 items is de minimis since it’s only 1/500th of the whole. This is a very good thing.

To submit comments on these new proposed rules, first read the details in the pdf linked to above, then you can comment by going here. Note that comments are due by January 3, 2017.

The Supplementary Registration is used to correct errors or make changes to an existing registration. Hopefully, you’ll never need to file one, but if you do you’re very likely going to have to do it electronically in the future. For more information on the proposed changes or to make comments, go here.

If you make contributions to periodicals, you may use that form of registration (GRCP) and there are changes there as well. Mostly, it is about making the registrations electronic, much like the Group Photo options I described above (are you seeing a theme here?). Notably, the Copyright Office notes in the Group Registrations proposed changes that it encourages photographers to use those options instead of the GRCP as there are fewer limitations. Still, if you use this form of registration (and this applies to text as well as photos, by the way), you should go here to read about the changes and to submit comments.

Excited and humbled

Today is the first day of this new practice. My new practice. It is the culmination of a lot of dreaming and a lot of work and many years of patience.

I wanted to go to law school for a very long time. In fact, I took the LSATs 3 times, not because I did poorly (the opposite, actually) but because my scores expired before I could get all the pieces to work so that I could attend. Scores last for 5 years so you can do the math there. Finally, everything came together and I happily did the work of being a full scholarship law student. I graduated a trimester early and passed the notoriously difficult California Bar on my first try. Then Istarted lawyeringwith Carolyn Wright (photoattorney.com) which was outstanding training in exactly the work I wanted to do (she is a great mentor to whom I owe so much).

And now, today, I get to hangmy (virtual)shingle. Burns the Attorney. Wow. It’s very exciting for me.Thank you to everyone who made this possible. I’m humbled to get to do this.

Thank you also to the clients who have already contacted me for new representation (and it’s not even 9am here as I type this!). It is my intentionto serve you all well, honorably, and as much like a decent human as any lawyer can be.

Let’s do this.

Before Means Before

Y’all are probably sick of hearing me nag about registering your work as soon as possible, but here is a great example of why I do that. In a recent opinion the court wrote (emphasis added by me):

Because Compass did not register its copyright until February 17, 2012 one day after the alleged infringement commenced the court finds as a matter of law that Compass is not entitled to an award of statutory damages or attorneys fees.

Ouch. That really sucks.

Remember that yourregistration has to be before the infringement actually began (or, in the case of published work, within 3 calendar months of first publication), not just before you discover the infringement, for you to be able to get statutory damages or attorneys’ fees. Clearly the courts are willing to say “One day too late, tough.”